State v. Lane, 43

• Decision Date: 04 November 1980
• Docket Number: No. 43,43
• Citation: 271 S.E.2d 273,301 N.C. 382
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Adolphus LANE.

Page 273

271 S.E.2d 273

301 N.C. 382

STATE of North Carolina v. Adolphus LANE.

No. 43.

Supreme Court of North Carolina.

Nov. 4, 1980.

Rufus L. Edmisten, Atty. Gen., by William F. O'Connell, Sp. Deputy Atty. Gen., Robert R. Reilly, Asst. Atty. Gen., and Reginald L. Watkins, Associate Atty., Raleigh, for the State.

Alexander, Hinshaw & Schiro, by Charles J. Alexander, II, Winston-Salem, for defendant-appellant.

BRANCH, Chief Justice.

The single question presented by this appeal is whether defendant was prejudicially deprived of his constitutional rights when the court permitted the district attorney to cross-examine him concerning his failure to disclose his alibi at the time he made a statement to the police officers or at any time before the trial.

Defendant relies heavily upon the case of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In Doyle the two defendants were arrested and charged with selling marijuana. They were duly given their Miranda warnings. At trial the defendants for the first time related that they were "framed" by narcotics agents and over objections were cross- examined as to their post-arrest silence concerning the "frame." The defendants were convicted and appealed, assigning as error, inter alia, the prosecutor's cross-examination concerning their post-arrest silence. The United States Supreme Court held that the use for impeachment purposes of defendants' silence at the time of arrest and after they had received the Miranda warnings violated their rights under the Due Process Clause. The Court held that it was fundamentally unfair to impeach defendants concerning their post-arrest silence after they had been impliedly assured through the Miranda warnings that their silence would not result in any penalty.

We note that the warnings mandated by Miranda are directed to whether statements made by an accused while in custody and while being subjected to custodial interrogation by police officers are voluntarily made so as to be admissible into evidence. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966); State v. Sykes, 285 N.C. 202, 203 S.E.2d 849 (1974); State v. Fletcher, 279 N.C. 85, 181 S.E.2d 405 (1971). Here the only statement made by defendant was volunteered, and its admissibility is not before us. In the context of this case, we attach little significance to the fact that Miranda warnings were not given. With or without such warnings defendant's exercise of his right to remain silent was guaranteed by Article 1, Section 23, of the North Carolina Constitution and the fifth as incorporated by the fourteenth amendment to the United States Constitution. The due process reasoning upon which decision in Doyle mainly rests does not arise in this case since defendant had not been given the Miranda warnings at the time the indictments were being read to him. Thus, any comment upon the exercise of this right, nothing else appearing, was impermissible. State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974).

We are cognizant of the recent case of Jenkins v. Anderson, --- U.S. ---- 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), where the defendant in a first-degree murder case testified at trial that he acted in self-defense. On cross-examination the prosecutor questioned the defendant about the fact that he never told anyone about that defense over a period of about thirty days prior to his arrest. The defendant was convicted and upon his appeal before the Supreme Court of the United States that Court held that the defendant's fifth amendment rights were not violated by the use of his prearrest silence to impeach his credibility. Jenkins v. Anderson, supra, is distinguishable from the case sub judice in that here defendant was under arrest at the crucial time and thus within the ambit of fifth amendment protections. Even so, there remains the question of whether the challenged cross-examination was permissible for the purpose of impeachment by showing a prior inconsistent statement.

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the United States Supreme Court held that the trial judge did not commit error by allowing the prosecutor to introduce into evidence prior inconsistent statements which were made by the accused without benefit of the Miranda warnings for the purpose of impeaching the defendant's credibility. The Court, in so holding, reasoned that the Miranda safeguards could not be perverted into a license to use perjury as a defense without being confronted with his prior inconsistent utterances.

Thus, in the case before us, we are squarely faced with the question of whether defendant's failure to disclose his alibi defense to the police officers or to some other person amounts to an inconsistent statement in light of his in-court testimony relative to an alibi. In support of its position that defendant's failure to relate his alibi testimony to someone prior to trial amounted to a prior inconsistent statement, the State points to a quote in Wigmore on Evidence, Section 1040 (Chadbourn Rev. 1970) from Foster v. Worthing, 146 Mass. 607, 16 N.E. 572 (1888) which states It is not necessary, in order to made the letter competent, that there should be a contradiction in plain terms. It is enough if the letter, taken as a whole, either by what it says or by what it omits to say, affords some presumption that the fact was different from his testimony; and in determining this question, much must be left to the discretion of the presiding judge. (Emphasis added.)

The State also relies upon State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1975). There the witness testified that she had heard deceased threaten the defendant but failed to state that she had told a police officer that she had also heard defendant threaten deceased. The trial judge allowed the police officer to testify to this omission as a prior inconsistent statement. In holding this to be proper, this Court speaking through Justice Huskins stated:

Prior statements of a witness which are inconsistent with his present testimony are not admissible as substantive evidence because of their hearsay nature. Hubbard v. R. R., 203 N.C. 675, 166 S.E. 802 (1932); State v. Neville, 51 N.C. 423 (1859). Even so, such prior inconsistent statements are admissible for the purpose of impeachment. ...

"... (I)f the former statement fails to...